Introduction
In practical terms, human rights are immensely important in immigration and asylum proceedings. Human rights arguments can be raised as part of an application to enter or remain in the UK and to contest an argument by the UKVI that a person should leave / be removed or deported from the UK.
When considering an application, the UKVI as a public authority should have regard to human rights considerations; and an appeal can be mounted against a negative decision on human rights grounds.
Most commonly in an immigration application or appeal, a person might argue that:
- to return them to their country of origin would expose them to torture or inhuman / degrading treatment there; or
- to remove them from the UK would interfere disproportionately with their right to a private and family life.
There may also be arguments regarding the interference with human rights of the process of removal itself – i.e. that it would be inhuman / degrading. Additionally, the authorities may be accused of breaching human rights within this jurisdiction; for example by detaining someone for an unjustifiably long period, or by denying basic support under the National Asylum Support Service.
The immigration courts will also consider human rights arguments in immigration and asylum appeals and it is possible to mount an appeal on the grounds that a person’s rights under the ECHR will be breached. Similarly the higher courts (High Court, Court of Appeal and Supreme Court) may give consideration to human rights arguments commonly as part of judicial review cases in an immigration or asylum context.
Case law
Judgments relevant to decisions where human rights have been raised can come from various courts; most importantly:
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- Determinations of the Upper Tribunal (Asylum and Immigration Chamber), which reports selected decisions on statutory immigration appeals;
- Judgments of the Tribunal on applications for Judicial Review;
- Judgements of the Court of Appeal, on appeal from the Tribunal;
- Judgments of the Supreme Court, on appeal from the Court of Appeal;
- Judgments and decisions of the European Court of Human Rights.